3

 

4. On June 21, 2001, an Agency inspector visited the site and discovered

that the tires had been removed, but that all other accumulations

remained on the site.

 

5. At all times relevant to the complaint, the site was not permitted by the

Agency for disposal of waste.

 

6. From June 7, 1999 until May 23, 2000, J&F regularly transported

construction and demolition debris, scrap metal piping and wiring, scrap

wood and scrap vinyl to the site, and deposited the materials on the

ground.

 

7. From June 7, 1999 until August 17, 2001, J&F did not apply to the

Agency for or obtain a permit to conduct a waste disposal operation at

the site.

 

8. J&F spilled or leaked used oil on the ground at the site.

 

9. From July 7, 1999 to the present, J&F generated solid waste without

making a hazardous waste determination.

 

The Board finds that the above facts concerning J&F are admitted. Accordingly, the

Board discusses if the People are entitled judgment as a matter of law based on the admitted

facts.

 

MOTION FOR SUMMARY JUDGMENT

 

J&F has not yet filed a response to the motion for summary judgment. Pursuant to

101.500(d) of the Board’s regulations, if no response to a motion is filed within 14 days the

non-responding party will be deemed to have waived the objection to the granting of the

motion.

Standard of Review

 

Summary judgment is appropriate when the pleadings and depositions, together with

any affidavits and other items in the record, show that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law.

See

Dowd & Dowd, Ltd.

v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). In ruling on a motion for summary

judgment, the Board “must consider the pleadings, depositions, and affidavits strictly against

the movant and in favor of the opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.

 

Summary judgment “is a drastic means of disposing of litigation,” and therefore it

should only be granted when the movant’s right to the relief “is clear and free from doubt.”

Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489

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4

N.E.2d 867, 871 (1986). However, a party opposing a motion for summary judgment may not

rest on its pleadings, but must “present a factual basis, which would arguably entitle [it] to a

judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist.

1994).

 

DISCUSSION

 

Relevant Statues and Regulations

 

 

Section 21 of the Act provides in part:

 

No person shall:

 

(1.) Cause or allow the open dumping of any waste.

* * *

(2.) Conduct any waste-storage, waste-treatment, or waste-disposal

operation:

 

A. Without a permit granted by the Agency or in violation of any

conditions imposed by such permit;

 

B. In violation of any regulations or standards adopted by the Board

under this Act.

* * *

C. Dispose, treat, store, or abandon any waste, or transport any

waste into this State for disposal, treatment, storage or

abandonment, except at a site or facility which meets the

requirements of this Act and of regulations and standards

thereunder.

* * *

D. In violation of subdivision (a) of this Section, cause or allow the

open dumping of any waste in a manner which results in any of

the following occurrences at the dump site:

     

  

  

  

  

(i.) litter. 415 ILCS 5/21(a),(d)(1) and (2),(e),(p)(1) (2000).

 

Section 55(a) of the Act provides:

 

1. No person shall:

 

(ii.) Cause or allow the open dumping of any used or waste

tires. 415 ILCS 5/55(a)(1) (2000).

 

35 Ill. Adm. Code 721.102 of the Board’s regulations provides in part:

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5

 

(iii.) Materials are solid wastes if they are abandoned by being:

 

(a) Disposed of; or

 

(b) Burned or incinerated; or

 

(c) Accumulated, stored or treated (but not recycled)

before or in lieu of being abandoned by being

disposed of, burned or incinerated.

 

35 Ill. Adm. Code 722.111 provides:

 

A person who generates a solid waste, as defined in 335 Ill. Adm. Code

721.102, shall determine if that waste is a hazardous waste using the following

method:

 

The person should first determine if the waste is excluded from regulation under

35 Ill. Adm. Code 721.104.

 

The person should then determine if the waste is listed as a hazardous waste in

35 Ill. Adm. Code 721, Subpart D.

 

(Board Note: Even if a waste is listed, the generator still has an opportunity

under 35 Ill. Adm. Code 720.122 and 40 CFR 260.22 (1986) to demonstrate

that the waste from the generator’s particular facility or operation is not a

hazardous waste.)

 

For purposes of compliance with 35 Ill. Adm. Code 728, or if the waste is not

listed as a hazardous waste in 35 Ill. Adm. Code 721, Subpart D, the generator

shall then determine whether the waste is identified in 35 Ill. Adm. Cod 721,

Subpart C by either:

 

Testing the waste according to the methods set forth in 35 Ill. Adm. Code 721,

Subpart C, or according to an equivalent method approved by the Board under

35 Ill. Adm. Code 720.121; or

 

Applying knowledge of the hazard characteristic of the waste in light of the

materials or processes used.

 

If the generator determines that the waste is hazardous, the generator shall refer

to 35 Ill. Adm. Code 724, 725, 728, and 733 for possible exclusions or

restrictions pertaining to the management of the specific waste. 35 Ill. Adm.

Code 722.111.

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6

 

35 Ill. Adm. Code 808.121 provides in part:

 

Generator Obligations

 

(a) Each person who generates waste shall determine whether the waste is a

special waste.

 

Board Note: 35 Ill. Adm. Code 722 requires the person to also determine if

the waste is a hazardous waste. 35 Ill. Adm. Code 808.121.

 

35 Ill. Adm. Code 812.101 provides in part:

 

(a) All persons . . . shall submit to the Agency an application for a permit to

develop and operate a landfill. The applications must contain the

information required by this Subpart and by Section 39(a) of the Act except

as otherwise provided in 35 Ill. Adm. Code 817. 35 Ill. Adm. Code

812.101.

 

Count I: Open Dumping of Waste

 

 

Complainant alleged that J&F violated Section 21(a) of the Act by consolidating waste

from one or more sources at a disposal site that did not fulfill the requirements of a sanitary

landfill.

 

Open dumping is defined as “the consolidation of refuse from one or more sources at a

disposal site that does not fulfill the requirements of a sanitary landfill.” 415 ILCS 5/3.24

(2000). Pursuant to the Act, “Refuse means waste.” 415 ILCS 5/3.31 (2000). Waste

includes any garbage or other discarded material. 415 ILCS 5/3.53 (2000).

 

The record shows that J&F operated a business at the site, and that J&F deposited

construction and demolition debris, scrap metal piping and wiring, waste tires, scrap wood and

vinyl and spilled or leaded used oil on the site on July 7, 1999. The record also shows that the

site was not permitted by the Agency for the disposal of waste, and thus did not fulfill the

requirements of a sanitary landfill.

 

The Board finds that the materials deposited at the site constitutes garbage or other

discarded material within the meaning of waste as defined by the Act. The Board also finds

that the debris was consolidated into piles constituting a consolidation of refuse at a disposal

site not fulfilling the requirements of a sanitary landfill. Thus, the Board finds that J&F

caused or allowed open dumping of waste in violation of Section 21(a) of the Act.

 

Count II: Causing or Allowing Litter

 

 

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7

Next, the Board considers whether the open dumping of waste resulted in litter under

Section 21(p)(1) of the Act. The Board has found that litter is defined as any discarded, used

or unconsumed substance or waste, and may include garbage, trash, refuse, debris, rubbish or

anything else of an unsightly or unsanitary nature. County of Will v. Hunter, AC 98-8

(May 7, 1998), slip op. at 3.

 

Under this definition, the debris at the site constitutes litter, and the Board finds that J&F

violated Section 21(p(1) of the Act.

 

 

Count III: Open Dumping of Used and Waste Tires

 

In count III, the People allege that J&F caused or allowed the open dumping of used or

waste tires at the site in violation of Section 55(a) of the Act. A tire is ‘used’ if it is worn,

damaged or defective and not mounted on a vehicle wheel rim.

See

415 ILCS 5/54.13 (2000).

A ‘waste tire’ is a used tire that has been disposed of.

See

415 ILCS 5/54.16 (2000).

 

The record shows that respondent dumped worn and damaged tires, not mounted on

vehicle wheel rims, at the site from July 7, 1999 until the filing of the complaint. The record

also shows that the site was not a sanitary landfill. The Board accordingly finds that J&F

violated Section 55(a) of the Act.

 

Count IV: Conducting a Waste Disposal Operation Without a Permit

 

 

In count IV, the People allege that J&F disposed of waste at the site without

first obtaining the appropriate permit thereby conducting a waste disposal operation in

violation of Section 21(d)(1) of the Act and 35 Ill. Adm. Code 812.101. As stated

above, from June 7, 1999 until May 23, 2000, J&F regularly transported construction

and demolition debris, scrap metal piping and wiring, scrap wood and scrap vinyl to the

site, and deposited the materials on the ground. The record shows that J&F did not

apply to the Agency for or obtain a permit to conduct a waste disposal operation at the

site during this time.

 

The Board finds that the respondent violated Section 21(d)(1) of the Act and 35 Ill.

Adm. Code 812.101(a) because it did not have a permit from the Agency to conduct a waste-

storage, waste-treatment, or waste-disposal operation at the site.

 

Count V: Waste Disposal at an Improper Site

 

 

In count V, the People allege that J&F disposed of waste at the site that was not

permitted for waste disposal, and therefore did not meet the requirements of the Act.

The People allege this resulted in a violation of Section 21(e) of the Act. As stated

above, from June 7, 1999 until May 23, 2000, J&F regularly transported construction

and demolition debris, scrap metal piping and wiring, scrap wood and scrap vinyl to the

site, and deposited the materials at a site not permitted for waste disposal. Accordingly,

the Board finds that the respondent violated Section 21(e) of the Act.

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8

 

Count VI: Failure to Make a Special Waste Determination

 

In count VI, the People allege that J&F failed to make a special waste determination on

the oil-contaminated soil from July 7, 1999 to the present, thereby violating 35 Ill. Adm. Code

808.121 and Section 21(d)(2) of the Act. The Act defines “generator” as any person whose act

or process produces waste. 415 ILCS 5/3.12 (2000).

 

The record shows that J&F dumped, spilled or disposed of used oil onto the ground,

and that from July 7, 1999 to the present, J&F failed to test the oil-contaminated soil at the site

to determine whether it is a special or hazardous waste.

 

The Board finds that by dumping, spilling, or disposing of the used oil onto the ground,

J&F became a generator as defined by the Act. Further, as a result of these actions, J&F

conducted a waste disposal operation. The Board finds that by failing to make a special waste

determination on the oil-contaminated soil from July 7, 1999 to the present, J&F violated 35

Ill. Adm. Code 808.121, and thereby also violated Section 21(d)(2) of the Act.

 

Count VII: Failure to Make a Hazardous Waste Determination

 

In count VII, the People allege that J&F generated solid waste without making a

hazardous determination from July 7, 1999, to the present, thereby violating 35 Ill. Adm.

Code 722.111 and Section 21(d)(2) of the Act. Materials are solid wastes if they are

abandoned by being “1) disposed of; or 2) burned or incinerated; or 3) accumulated, stored or

treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned or

incinerated.” 35 Ill. Adm. Code 721.102.

 

The record shows that J&F dumped, spilled or disposed of used oil onto the ground,

and that from July 7, 1999 to the present, J&F failed to test the oil-contaminated soil at the site

to determine whether it is a special or hazardous waste.

 

The Board finds that the used oil dumped, spilled or disposed onto the ground was a solid

waste as defined in 35 Ill. Adm. Code 721.102. As previously state, J&F is a generator as

defined by the Act. The Board finds that by generating solid waste without making a hazardous

waste determination from July 7, 1999 to the present, J&F violated 35 Ill. Adm. Code 722.111,

and that by conducting a waste disposal operation in violation of 35 Ill. Adm. Cod 722.111 also

violated Section 21(d)(2) of the Act.

 

 

CONCLUSION

 

 

The Board deems admitted the material allegations set forth in the complaint in this

matter. The Board finds that complainant is entitled to summary judgment in its favor as a

matter of law on all of the alleged violations.

 

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9

The Board finds that J&F violated Sections 21(a), (d)(1) and (2), (e), and (p)(1); and

55(a) of the Act (415 ILCS 5/21(a),(d)(1) and (2),(e),(p)(1) and 55(a) (2000) and 35 Ill. Adm.

Code 722.11, 808.121, and 812.101(a). The Board also finds that J&F may be liable for all

costs, pursuant to 42(f) of the Act, including attorney, expert witness, and consultant fees,

expended by the State in pursuit of this action against J&F.

 

The Board directs the parties to hearing as expeditiously as practicable on the specific

issue of the appropriate penalty amount, costs, and attorneys fees in this matter. The parties

will be limited at hearing to testimony and evidence that are relevant to the factors as set forth

in Sections 33(c), 42(f), and 42(h) of the Act (415 ILCS 5/33(c), 42(f), (h) (2000)).

 

IT IS SO ORDERED.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above order on June 6, 2002, by a vote of 7-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board